Tabayoyon v. Super. Ct.

Filed 2/11/09 Tabayoyon v. Super. Ct. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

Justin Tabayoyon appealed from the trial courts denial of his motion for early withdrawal of his plea and dismissal of a charge for vandalism. He contends the trial courts denial of his motion violated the plea agreement. We conclude the order denying his motion is not an appealable order, but will treat the appeal as a petition for writ of mandate and issue the writ.

BACKGROUND

Defendant was charged with infliction of corporal injury on the mother of his child (Pen. Code, 273.5, subd. (a)),^[1]assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), and felony child endangerment ( 273a, subd. (b)).

On August 13, 2007, defendant entered into a negotiated plea agreement whereby he agreed to plead no contest to felony vandalism ( 594) and misdemeanor disturbing the peace ( 415). In exchange for his plea to vandalism, entry of judgment would be deferred for one year or completion of a 52-week domestic violence program, whichever occurred later. Defendant would be placed on misdemeanor probation and the remaining charges would be dismissed. As a further condition, the parties agreed that, if defendants felony plea were to be used in any family court proceeding, he would be permitted to immediately move to withdraw his plea to vandalism and the charge would be dismissed. The trial court acceded and adhered to the agreement.

At the time defendant entered into his plea agreement, there were family law child custody cases pending in Solano County and in Montana. Defendants wife had moved to Montana prior to the birth of her and defendants son in 2006. Under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, the Solano County Superior Court was exercising jurisdiction over the issue of child custody. However, when defendant was arrested in the instant matter, the court in Montana assumed temporary emergency jurisdiction over the children, pending resolution of the criminal charges in this Yolo County case.

On September 14, 2007, defendant (through his counsel) filed a motion in Solano County Superior Court requesting the court terminate the Montana courts emergency jurisdiction. He argues that, since the claimed emergency was his pending criminal charges and those had been resolved, the temporary emergency jurisdiction must be terminated. In support of his motion, he explained that he had elected to plead no contest to misdemeanor disturbing the peace with loud noise, would be on summary probation and attend 52 weeks of anger management classes, and was given deferred entry of judgment for vandalism which charge would be dismissed after he completed his classes. He also informed the court that he would be permitted to withdraw his plea to vandalism and the charge would be dismissed if anyone attempted to use the plea against him in any family court proceeding.

On September 21, 2007, defendants wife (through her counsel) filed a motion in the Montana family law court proceeding requesting the Montana court accept full jurisdiction of the child custody matter between her and defendant and consolidate the cases of the two children. The basis for her motion was that California was now an inconvenient forum and it was inappropriate to continue with separate proceedings for each child. In support of her motion, she informed the court that, Earlier, [defendant] faced criminal prosecution in California, in Yolo County, for domestic abuse. That prosecution is now over, [defendant] having plead guilty to Misdemeanor Disturbing the Peace and Deferred Entry of Judgment for Felony. She argued that: Additionally, domestic violence has occurred, is likely to occur in the future and it is a Montana Court that can best protect the parties and the children. The Court should accept jurisdiction under M.C.A. 40-7-108, particularly taking into account subsection (3) of said statute and [defendants] complete lack of action to promptly proceed with the action in California, even after his guilty plea in Yolo County to the criminal charges stemming from his domestic abuse. She further concluded that the policy of proceeding in the original jurisdiction to prevent a parent from leaving the state and depriving the other parent of parental rights did not apply because [h]ere [defendants wife] had to flee California to protect herself, her daughter and her then-unborn son. [Defendant] was charged with and plead guilty to crimes involving violence.

On October 2, 2007, defendant filed a motion for early withdrawal of his plea and dismissal of the vandalism charge pursuant to his plea agreement, based on the aforementioned pleadings filed by his wife in the Montana family law case.

On October 17, 2007, the judges in Solano County and in Montana conferred via telephone. They thereafter informed defendant and his wife that they had concluded that the Montana court had jurisdiction of the son who was born in Montana. With respect to jurisdiction over the older daughter, the judges had discussed the effect of the parties domestic violence history on the inconvenient forum issue. Both judges felt that before a substantive decision can be made on the inconvenient forum issue, more detailed information regarding the Yolo County criminal case is required, including but not limited to allegations made and disposition of the matter. Not discussed in the telephone conference but important in the overall picture of this case is the fact that [defendants] motion in the California court, currently set for hearing on October 22, 2007, is premised upon the Yolo County criminal proceedings being resolved. The above-described information regarding [defendants] case would apparently be vital to the California courts determination of his motion. The memorandum from the Solano County judge to the parties of the discussion was filed in the instant case for consideration regarding defendants motion to withdraw his plea.

On October 19, 2007, after a contested hearing, the trial court denied defendants motion for early withdrawal of the plea, concluding that the plea had not been used against defendant in the family law proceedings. The trial court reasoned that the judges in Solano County and Montana needed to be aware of the status of this case in order to make an intelligent decision on the child custody matters. The trial court also concluded that neither defendant nor his wife had unfairly misrepresented the resolution of the Yolo County case.

Defendant filed a notice of appeal from the October 23, 2007, order denying his motion for early withdrawal of his plea.

DISCUSSION

I

Appealability

In his statement of appealability, defendant acknowledges there is some question whether the order denying his motion for early withdrawal of his plea is an appealable order. He requests, however, that if we find the order not appealable, we treat the appeal as an extraordinary writ petition. Respondent does not contest the appealability of the order, nor does respondent object to treatment of the appeal as a writ petition. Nonetheless, since the question of appealability goes to our jurisdiction, we are dutybound to consider it . . . . [Citations.] (Olson v. Cory (1983) 35 Cal.3d 390, 398.)

[A] judgment or order is not appealable unless expressly made so by statute. [Citations.] (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1237, subdivision (b) provides that a criminal defendant may appeal from a final judgment of conviction or from any order made after judgment which affects the substantial rights of the party. (Ibid.) Section 1237 further provides: A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. ( 1237, subd. (a).)

Because a deferred entry of judgment is neither a final judgment nor listed in section 1237 as one of the types of orders deemed to be final judgments for purposes of appeal, a defendant cannot appeal following a deferred entry of judgment. (People v. Mazurette, supra, 24 Cal.4th at p. 794.) Lacking a judgment of conviction, defendants no contest plea, standing alone, is insufficient to constitute an appealable final judgment. (Ibid.) In other words, when a judgment is deferred, there is no judgment from which a defendant can appeal. (Ibid.; see also In re Mario C. (2004) 124 Cal.App.4th 1303, 1307-1308.) It thus follows that defendant cannot appeal from denial of a motion for early withdrawal of a plea with a deferred entry of judgment.

An appellate court, however, has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) While we should exercise this discretion only under extraordinary circumstances compelling enough to indicate the propriety of a petition for writ . . . in the first instance, we find such circumstances present here. (Id. at p. 1367.)

In Olson v. Cory, supra, 35 Cal.3d 390, the Supreme Court found it appropriate to treat an appeal from a nonappealable order as a writ petition where there was an inadequate remedy at law, the briefs and record included the substance necessary for proceeding as a writ of mandate, there was no indication the trial court would appear as a party in a writ proceeding, the appealability of the order was not clear, and all the parties urged the court to decide the issue rather than dismiss the appeal. (Id. at pp. 400-401.) The court concluded that dismissing the appeal rather than exercising its power to reach the merits, would be unnecessarily dilatory and circuitous. [Citation.] (Id. at p. 401.)

Similar considerations are present here. Requiring defendant to wait for review of his motion until after the deferred judgment is entered or until the charge is dismissed under the terms of the deferred judgment is an inadequate remedy under these extraordinary circumstances. If defendants contention has merit, he is entitled to immediately withdraw his plea and have the felony charge dismissed. His plea could not, therefore, be used in any way against him in the family law proceedings. If he must wait, or if the judgment is ultimately entered, it could affect the pending family law proceedings, thus thwarting the clear purpose of the plea agreement.

Further, the briefs and record are adequate for writ review, and there is no indication that the trial court would be more than a nominal party to the writ proceeding. The appealability of the order was not contested by respondent and respondent did not object to this court treating the appeal as a writ of mandate. Dismissing the appeal and requiring defendant to bring this by way of petition for writ of mandate would be unnecessarily dilatory and circuitous. (Olson v. Cory, supra, 35 Cal.3d at p. 401.

Accordingly, we find the circumstances of the instant case to be extraordinary and will exercise our discretion to treat defendants purported appeal from the nonappealable order as a petition for writ of mandate.

II

Motion to Withdraw Plea and Dismiss Charge

A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767.) [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. [Citation.] (People v. Mancheno (1982) 32 Cal.3d 855, 860; see also People v. Walker (1991) 54 Cal.3d 1013, 1024.)

Here, defendant entered into a negotiated plea agreement whereby he agreed to plead no contest to felony vandalism and misdemeanor disturbing the peace. In exchange for his plea to vandalism, entry of judgment would be deferred for one year or completion of a 52-week domestic violence program, whichever occurred later. As a further condition, the parties specifically agreed that, in the event that the felony plea to [. . . ] vandalism is used against him in the family law court proceedings regarding him and his wife and the children, the DA agrees that we can come back to court and accelerate the withdrawal of that plea and the charges be dismissed. This further condition was clearly a significant component of the plea agreement and respondent does not contend otherwise.

Instead, respondent argues the trial court properly found that the use of defendants plea was reasonable under the circumstances and the terms of the plea were not unfairly misrepresented to the courts. The question is not, however, whether the family law courts may have wanted, or even needed, the information regarding the resolution of the criminal charges in Yolo County, or whether the terms of the plea were fairly misrepresented to the courts. The question is whether defendants felony plea was used against him in a family law proceeding. It was.

Defendants wife requested that the Montana court accept full jurisdiction of the child custody matter between her and defendant and consolidate the cases of the two children. In support of her motion, she argued that the Court should accept jurisdiction under M.C.A. 40-7-108, particularly taking into account subsection (3) of said statute and [defendants] complete lack of action to promptly proceed with the action in California, even after his guilty plea in Yolo County to the criminal charges stemming from his domestic abuse. (Italics added.) She further argued that the policy of proceeding in the original jurisdiction to prevent a parent from leaving the state and depriving the other parent of parental rights did not apply because [h]ere [defendants wife] had to flee California to protect herself, her daughter and her then-unborn son. [Defendant] was charged and plead guilty to crimes involving violence. (Italics added.)

We need not decide whether defendants wife misrepresented defendants plea by claiming he had pled guilty to charges stemming from his domestic abuse or involving violence. Nor is it pertinent whether the Solano County or Montana family law courts wanted more information regarding the resolution of the Yolo County case. The upshot is, defendant was requesting that the Solano County court resume full jurisdiction and defendants wife used defendants felony plea against him in order to convince the Montana court to accept full jurisdiction.

Thus, according to the express terms of the plea agreement, defendant was entitled to accelerate the withdrawal of his deferred felony plea and have the charge dismissed.

DISPOSITION

The appeal is construed as a petition for a writ of mandate and, as such, granted. Let a peremptory writ of mandate issue, directing the trial court to vacate its order denying petitioners motion to withdraw his plea to and dismiss count 4, and to make a different order consistent with this opinion.

BLEASE , J.

We concur:

SCOTLAND , P. J.

DAVIS , J.

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^[1] Further undesignated statutory references are to the Penal Code.